Houston & Texas Central Railroad v. Knapp

Gould, Associate Justice. There can be no question that the right of action was in plaintiff for injuries to crops belonging to her and grown on land occupied by her as a homestead. Kor does it admit of question that she had such an interest in that homestead, being part of the community estate of her [600] self and her deceased husband, as authorized her to sue for damages to the land caused by overflows occurring after her husband’s death. If at the time of these overflows she was not the sole owner of the land injured, but owned the same jointly with the heirs of her deceased husband, the non-joinder of her co-tenants could only be taken advantage of by plea in abatement or by way of apportionment of damages. (May v. Slade, 24 Tex., 208; 1 Redf. on Railw., secs. 9, 21; Wood on Nuisances, ch. 27.) The charges asked on behalf of appellant, and the propositions in the brief of counsel, deny the right of plaintiff to any recovery for damages to land and crops before she, by the partition of the estate of her husband, became the sole owner of the land, claiming that the representative of the estate could alone maintain such suit. This proposition is erroneous, and the charges asked were rightly refused. No charge was asked limiting plaintiff’s recovery for permanent damages to the land according to her estate or interest, and thus apportioning the damages. As she was at the time of the overflows not only occupying the land as her homestead, with a right to continue to so occupy it during her life, but was, in virtue of her community rights, the owner of a half interest therein, and also before suit brought became, by partition, the absolute owner in fee, we do not feel called upon to inquire whether some part of the damages might not have been deducted because of the interest of •others in the land. The error in this respect, if error there was, is not of a character to require us to go beyond the questions presented in the assignment of errors and the brief of counsel. Objection was made to the testimony of Charles Knapp as being only his opinion, and therefore inadmissible. He states that the land was worth about $10 per acre, though overflowed, and that it would be worth $20 if it did not overflow. Fairly construed, this is nothing more than the testimony [601] of the witness as to the market value of the land. Evidence of value is admissible, although to some extent it be a matter of opinion. The refusal to allow Eoss to state how much the land had been impaired by the construction of the railroad, cannot avail appellant, for the double reason that the bill of exceptions fails to show the objection made to the question or testimony, and because the statement of facts shows that the witness had substantially answered the question. The verdict is not so unsupported by evidence as to authorize a reversal of the judgment on that ground. Confining ourselves to the questions made and discussed, we see no error in the judgment. It is accordingly affirmed. Affirmed.